Citation Nr: 0810913 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 06-03 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for lower extremity peripheral neuropathy as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The veteran served on active duty from June 1969 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In connection with his appeal the veteran testified at a videoconference hearing in July 2006, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2007). A transcript of the hearing is associated with the claims file. A motion to advance this case on the docket was denied by the Board in July 2007. See 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). In August 2007, the Board remanded these issues for additional evidentiary development. The case has since been returned to the Board for further appellate action. FINDINGS OF FACT 1. Diabetes mellitus was not present until more than one year after the veteran's discharge from service and is not etiologically related to service. 2. Lower extremity peripheral neuropathy is not etiologically related to a service-connected disability. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active duty, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Lower extremity peripheral neuropathy is not proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for diabetes and for lower extremity peripheral neuropathy associated with the diabetes. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the veteran with the notice required under the VCAA, to include notice that he submit any pertinent evidence in his possession, by letters mailed in March 2005 (diabetes) and April 2005 (peripheral neuropathy), both prior to its initial adjudication of the claims. Although the veteran has not provided notice of the type of evidence necessary to establish a disability rating or effective date for service connection for the disabilities for which service connection is sought until September 2007, after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for the veteran's diabetes or peripheral neuropathy. Consequently, no disability rating or effective date will be assigned, so the failure to provide timely notice with respect to those elements of the claims was no more than harmless error. The Board also notes that the veteran has been afforded a VA examination, and service treatment records and pertinent VA medical records and private medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. In sum, the Board is satisfied that that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served continuously for 90 days or more during a period of war and diabetes mellitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Diabetes The Board notes initially that the record does not demonstrate, and the veteran does not contend, that he served in the Republic of Vietnam for purposes of the presumptive provisions pertaining to herbicide exposure. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, the record does not demonstrate that he was actually exposed to herbicides. Service treatment records show that the veteran was seen for complaints of headaches while on active duty, but they do not show that he was found to have diabetes. Those records also do not contain any reference to abnormal test results, or any suggestion that the veteran was pre-diabetic or borderline diabetic. Indeed, the report of examination for discharge in July 1970 shows that the veteran's endocrine system was found to be normal on clinical evaluation. Although the post- service medical evidence of record shows that the veteran currently has a diagnosis of diabetes mellitus, there is no such diagnosis for more than 30 years after the veteran's discharge from service. The veteran submitted a brief statement from his private physician in August 2006, stating that, after careful review of the medical records, "it would appear that his unexplained weight gain and vision changes were signs of prediabetes. He is at higher risk due to family history and race. He was having symptoms of diabetes prior to his diagnosis. These symptoms are not related to any other of his current medical conditions." A VA examination was conducted in October 2007. The examiner stated his opinion that there is not a 50 percent or better probability that diabetes is etiologically related to the veteran's military service. He stated, "If a record can be found documenting impaired glucose tolerance or glucosuria during times of service this would establish a temporal relationship between military service and type 2 diabetes. As the veteran's dates of service were at least 25 years predating his diagnosis of type 2 diabetes it is less likely than not that the military service is the cause of his diabetes, despite his assertion that weight gain during the military contributed." In November 2007, the private physician submitted another letter stating that she had reviewed the medical records, which showed "[v]ision change 20/20 and 20/30" as well as "142lbs to 157lbs w[e]ight gain in a short period which appear[s] to be polyphagia" and "Polyuria possibl[y] brought on by Polydipsia." It was her opinion that the symptoms in the veteran's medical records are "more likely than not to the diabetes are related to military service." She based her opinion on the "[v]eteran's race and family history along with his statements that he was told in the military that he was a border-line diabetic." The Board finds the October 2007 VA examiner's opinion to be the most probative given the veteran's military and medical history. The Board considers the absence of any diagnosis of diabetes in service medical records or of such a diagnosis until more than 30 years after the veteran's discharge from service as substantial evidence weighing against the claim. This was also cited as significant by the October 2007 examiner. Yet, the private examiner's opinions make no attempt to explain this delay, except to note that the veteran had symptoms before he was diagnosed. How much before is not indicated. In addition, the private examiner found it significant that the veteran gained 15 pounds during his service. On the service entrance examination, the veteran weighed 142 pounds, and at separation (13 months later), he weighed 157 pounds. However, the Board notes that the veteran also gained 3 inches in height between entry and separation. The Board is not competent to address whether this apparent growth adequately accounts for the additional weight, or whether such growth is medically plausible for a man of the veteran's age during service. However, the private examiner's failure to address this evidence seriously undercuts her ultimate conclusion that the veteran's weight gain was an indicator of diabetes. In addition, the Board notes that the private examiner based her opinion substantially on the veteran's statement that he was told in the military that he was a border-line diabetic. However, despite the veteran's current assertion (January 2008 letter) that "[e]very medical personnel from my military days[...]onward referred to me as a border-line diabetic," this term is nowhere recorded in the service treatment records, and the separation examination contains normal endocrine findings, thus directly contradicting the veteran's account. While, as a layperson, the veteran is competent to describe his symptoms, his account of what physicians purportedly said more than 30 years ago, filtered as it is through a layperson's sensibilities, and contradicted as it is by recorded medical findings, is neither competent nor credible. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995 More significantly, the veteran's statement to his private physician, and in his sworn testimony, differs from his original statement to VA, as reported on his February 2005 claim form. At that time, he reported that he was told he was borderline diabetic before he entered the service, not, as he told the private examiner, during service. In a March 2005 VA Form 21-4138, the veteran first wrote that he had problems with this all of his life. However, prior to submitting the form, he attempted to obscure this statement with white tape. Based on the unexplained change in the veteran's account, the Board finds his statements with respect to the onset of his diabetes to be lacking in credibility. Moreover, in the Board's view, the discrepancy between the veteran's statement to his physician, and his original statement to VA is meaningful, as the private examiner is purporting to relate in-service symptomatology to the onset of diabetes. As her understanding appears to be factually incorrect, the probative weight that can be attached to the private physician's opinion is substantially diminished. By contrast, the October 2007 VA examiner's reasoning is based on the lack of in-service clinical findings that would indicate impaired glucose tolerance or glucosuria, and would therefore establish a temporal relationship between military service and type 2 diabetes. The examiner also found the extended period between discharge and diagnosis to be significant. The examiner's reasoning and conclusion are entirely consistent with the evidence of record, and the Board adopts the examiner's conclusion that it is less likely than not that the veteran's military service is the cause of his diabetes. Accordingly, the Board concludes that the preponderance of the evidence is against this claim. Peripheral Neuropathy The veteran does not contend, nor does the record on appeal demonstrate, that his claimed lower extremity peripheral neuropathy had its onset during his period of military service. The first identification of such a disorder of record occurred more than 30 years after the veteran left military service. The veteran believes that his lower extremity peripheral neuropathy was caused or aggravated by his diabetes. Moreover, the October 2007 VA examiner found that the veteran's peripheral neuropathy was a "complication" of his diabetes mellitus. As already discussed above, diabetes is not service connected. Accordingly, service connection for lower extremity peripheral neuropathy is not in order. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for lower extremity peripheral neuropathy as secondary to diabetes mellitus is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs